Luttinger v. Rosen Case Brief

Facts: P contracted to buy D’s property conditional upon him obtaining a mortgage financing in the amount of $45,000 for interest rate not more than 8.5 percent per annum. P promised to use due diligence. P’s attorney handled the financing process and he only knew of one lending institution in the area that would meet P’s requirements. Therefore, he applied for loan at this institution and the loan was offered but was above the 8.5 percent interest level. P refused to accept that loan and asked D for the return of deposit. D offered to fund the interest rate difference but P refused.

Procedure: Lower court ruled in favor of P.

Issue: Is P entitled to the return of his deposit?

Holding: Yes

Rationale: Under the K, P used due diligence. P didn’t have to apply to lending institutions where he knew that his loan was not going to get approved. “The law does not require the performance of a futile act.” Furthermore, the K clearly stated the condition upon which the parties promised to purchase. If this condition wasn’t met, P had no obligation to buy D’s property and was entitled to his deposit. The fact that D made an additional offer to fund the interest rate difference does not change the original . P had no obligation to accept D’s offer. Affirmed.

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